Central Administrative Tribunal - Allahabad
Sanjay Shukla S/O Sri R.N. Shukla vs Sri Pradeep Kumar on 20 May, 2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
*********
Contempt Petition No. 330/00146/2014
In
Original Application No. 330/01345/2014
Allahabad this the 20th day of May, 2015
Honble Ms. Jasmine Ahmed, Member-J
Honble Mr. U.K. Bansal, Member-A
Sanjay Shukla S/o Sri R.N. Shukla, R/o 256-B, Railway Colony, Aligarh present working as Chief Booking Clerk (Commercial Apprentice), North Central Railway, Aligarh.
Petitioner
By Advocates: Shri S.K. Om
Shri Jaswant Singh
Vs.
1. Sri Pradeep Kumar, General Manager, N.C. Railway, Allahabad.
2. Smt. Anu Mani Tripathi, Senior Divisional Commercial Manager, Allahabad Division, N.C. Railway, Allahabad.
Contemnors/Respondents
By Advocate: Shri K.P. Singh
O R D E R
Delivered by Honble Ms. Jasmine Ahmed, Member-J By Order dated 16.10.2014, which was corrected on 29.10.2014, an Order was passed by this Tribunal to keep the transfer order in abeyance till the next date of hearing. At the same time, it was also directed that the applicant shall prefer a detailed representation within a week from the date of receipt of a certified copy of that order and the respondents were also directed to take a decision based on the observation made in the Order dated 16.10.2014 keeping in view the rule position about the mid academic session transfer and also the spouse ground.
2. The contention of Counsel for the applicant is that though the transfer order dated 14.10.2014 was kept in abeyance but the respondents are not allowing him to work. Counsel for the applicant also states that as per direction of this Tribunal, applicant preferred a detailed representation which was duly served on the respondents within a week but they are not allowing the applicant to work. Counsel for the applicant states that the respondents by not allowing the applicant to work have committed contempt hence they are liable to be punished under Contempt of Courts Act.
3. Counsel for the respondents filed the Counter Affidavit stating therein that the applicant was spared by the Divisional Traffic Manager on the same date i.e. 14.10.2014 afternoon. He states that the transfer of applicant is based on periodical transfer policy which stipulates that the staff working on the substantive post should be transferred in every four years and as the applicant being frontline commercial staff and stationed at Aligarh since 2000 hence there is nothing wrong in transferring the applicant. He also states that Shri T.K. Mittal has already taken charge in place of the applicant at Aligarh on 16.10.2014 (afternoon). The respondents have stated that it is not hard and fast rule to consider the spouse ground, and it is only a policy guideline which is suggestive in nature. Counsel for the respondents contends that against the impugned order passed on 16.10.2014, the respondents have filed Stay Vacation Application along with Short Counter Affidavit and as the Stay Vacation Application is pending and has not been decided so far, the stay vacation application has to be decided first before dealing with the contempt, he states that the transfer of applicant is done with the approval of competent authority i.e. General Manager and transfer is as per law hence nothing illegal or arbitrary action is committed on the part of respondents.
4. Counsel for the applicant vehemently opposed the contention of Counsel for the respondents by filing the Rejoinder Affidavit and stated that it is not correct that the applicant has been relieved on 14.10.2014 itself. He drew our attention to page 15 of the Rejoinder Affidavit wherein we find that it is a sick memo dated 14.10.2014 and it was issued by the Deputy Station Superintendent and the applicant was referred to J.N. Medical College Hospital, A.M.U., Aligarh where he was hospitalized as indoor patient. He also stated that though he was discharged on 15.10.2014 but he was advised complete bed rest for a week, as such, he was granted sick memo by the Senior Divisional Medical Officer, N.C. Railway, Aligarh. He also stated that Shri Rishi Kumar who was the Deputy Station Superintendent issued him G-92 i.e. sick memo hence how after issuing the sick memo can go to the residence of applicant being fully aware that the applicant is not well and has been referred to the Hospital for treatment. He stated that this is not believable. He also stated that as he was prescribed by the Doctor the complete bed rest, his phone was switched off. Counsel for the applicant stated that the applicant has drawn his pay from Aligarh up to December 2014. He also stated that if the applicant was relieved immediately with effect from 14.10.2014, there was no occasion that his salary should be disbursed from Aligarh and his name should have been deleted from rolls of Aligarh. In this regard, he drew our attention (annexure RA-5, page 21 of the R.A.) which are pay slips showing that he has been receiving his salary from Aligarh itself till December, 2014 He also stated that the letter dated 19.12.2014, which is annexure RA-6 page 23 of the R.A., issued by the Senior D.P.O., Allahabad with regard to monthly meeting of the Union, name of the applicant contained at serial No. 252 wherein his designation is shown as DTM, Aligarh. He showed the letter dated 21.10.2014 issued by the Senior D.P.O., Allahabad at page 26 of the R.A. regarding monthly meeting of the Union scheduled to be held on 27.10.2014 and name of the applicant is shown at serial No. 2 as DTM, Aligarh and by this letter it was requested that the applicant should be spared to attend his meeting dated 27.10.2014. He again drew our attention towards letter dated 21.11.2014, issued by the Senior D.P.O. regarding monthly meeting of the Union scheduled for 26.11.2014 and the name of applicant here also find place at serial No. 2 showing his designation as DTM, Aligarh. Again there is a letter dated 26.12.2014, issued by the Senior D.P.O., regarding same monthly meeting of the Union to be held on 29.12.2014. Here, also we find that the applicants name is at serial No. 2 and his designation shown is DTM, Aligarh. Counsel for the applicant again drew our attention to page 29 of the R.A. It is a letter issued by the Senior D.P.O. regarding monthly meeting of the Union scheduled to be held on 30.11.2015 and herein also the name of applicant find place at serial No. 2 and his designation is DTM, Aligarh. Counsel for the applicant drew our attention to page 31 of the R.A. which is a letter dated 10.02.2015 issued by the General Manager (P) with regard to list of office bearers at Aligarh Branch wherein the name of applicant finds place at serial No. 3 and the designation of applicant is shown as Commercial Inspector, Aligarh/DTM, Aligarh. He also drew our attention to the foot note (in Note-1) of this letter which categorically says that the dismissed, removed, terminated, retired or transferred employees name may be pointed out and their names may not be circulated but, by letter dated 16.02.2015, page 34 of the R.A. annexure R.A.-9, we find that in compliance of the order dated 10.02.2015 applicants name has been circulated at Serial No. 3 as Office President as Commercial Inspector, Aligarh and DTM, Aligarh. Counsel for the applicant vehemently states that from the afore mentioned documents, it appears to be reasonable and justified that if the applicant has been spared from Aligarh on 14.10.2014 then how his name is continuing in all the correspondences issued by the responsible officers to the rank of Senior D.P.O. and G.M. (P). He categorically states that the name of applicant was always find in these letters with the approval and in compliance of the letters issued by the Senior D.P.O. and the General Manager (P).
5. Counsel for the applicant also stated that as per the Judgment in the case of Dr. H. Phunindre Singh and others vs. K.K. Sethi and another (1998) 8 Supreme Court Cases 640, the Honble Supreme Court has held that the Court should dispose of the Contempt Petition first before deciding any appeal. He also stated that in the case of Anil Panjwani AIR 2003 Supreme Court 2177, the Honble Apex Court has held that though it is not a rule but as a matter of practice, contemnor should purge himself from contempt before giving him the opportunity of hearing. Counsel for the applicant also stated that as per citation i.e. 2006 Vol. 2 U.P.L.B.E.C. 1810, the Honble High Court of Allahabad has held that when the Order has been stayed by a Court then non-implementation of the said order amounts to willful contempt. He also stated that the reliance on Yaqoob Khans Judgment by the respondents is having no application to the present case in as much as same relates to an impugned order passed exparte. Learned counsel stated that the respondents could not rebut any of the documents filed through Rejoinder Affidavit as the R.A. was filed on 25.02.2015 and the matter was heard on 11.03.2015. Till that time, the respondents had ample time to rebut/contest all these documents and by not doing so it means that either they have nothing to say about the documents filed with R.A. or they have accepted the contentions of applicant.
6. Heard the rival contentions of Counsels for the parties and gone through the documents filed along with the pleadings.
7. From perusal of all the documents, filed through R.A., it is ample clear that the applicant could not be relieved on 14.10.2014 as all the documents stated above clearly depicts the admissibility of situation that the applicant was continuing at Aligarh much after 14.10.2014. The respondents had released his salary from Aligarh which is very much clear from the pay slips (from October to December, 2014), attached by the applicant at page 21, we are satisfied and convinced that the plea taken by the respondents that the applicant was relieved on 14.10.2014 does not seem justified in the absence of any rebuttal from the side of respondents.
8. It is seen from the pleadings filed along with the Counter Affidavit that the respondents themselves have filed a letter dated 03.04.2012 (Annexure-4) along with the Counter Affidavit regarding periodical transfer of non-gazetted railway employees, published by the Government of India, Ministry of Railways, Railway Board wherein it is mentioned at page 3 against letter No. E(NG)I-2009/TR/7 dated 04.03.2010 that while ensuring compliance and the fundamental objectives of the scheme of periodical transfers, the academic session of the children of the employees being transferred may also be kept in view. At page 4 of this letter, there is a mention about the staff of Commercial department and it is categorically stated that in order to avoid large scale dislocation in the case of this category of staff, periodical transfer may as far as possible be effected without involving a change of residence of the staff concerned. The respondents own documents which is RBE No. 23 of 2010 published by the Government of India, Ministry of India Railway Department dated 02.10.2010 deals with posting of husband and wife at the same station as far as possible. The wife of applicant is a Teacher and the son of applicant is studying in Class 11. Both these facts have to be considered by the respondents while affecting the transfer order.
9. Accordingly, we feel that the respondents have committed contempt of the Order dated 16.10.2014 passed by this Tribunal but before initiating contempt proceedings against them, the respondents are given only two days time to purge themselves from contempt by allocating work to the applicant. List the matter on _____________.
Member A Member J
/M.M/
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